1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Whistleblowing: Court of Appeal rules on “public interest” test

The Court of Appeal has delivered its judgment in the recent whistleblowing case of Chesterton Global Ltd and another v Nurmohamed, the first case of its kind to reach the Court of Appeal.

This is a significant case that sets out the approach to be taken by tribunals when deciding if a disclosure is “in the public interest”, a requirement for statutory whistleblowing protection. This “public interest” test was introduced in June 2013 in order to prevent workers from using whistleblowing protection laws to bring claims where they make disclosures about a breach of their own employment contract.

Mr Nurmohamed, an estate agent, had successfully brought a claim in the employment tribunal for dismissal and suffering detriment as a result of making a protected disclosure. He had raised a concern that there were misstatements in Chesterton Global’s management accounts, which he alleged were designed to reduce the amount of commission paid to around 100 senior managers, including himself.

The Employment Tribunal decided that his disclosures were in the public interest. The tribunal’s decision was upheld by the Employment Appeal Tribunal. The employer appealed to the Court of Appeal. The Court of Appeal heard arguments on behalf of the employer and Mr Nurmohamed as to alternative meanings on what constitutes a public interest.  The court rejected the arguments of Public Concern at Work and the arguments on behalf of the employer. These were  that the interests affected by the disclosure should extend beyond the employer’s workforce.

The Court noted that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistleblower thought so, and whether that belief was objectively reasonable at the time. There are no “absolute rules” about what it is reasonable to view as being in the public interest. The number of people affected by the issue is a relevant factor although tribunals should be cautious about treating this as determinative. There will usually be other relevant factors such as the nature and extent of the interests affected, the nature of the wrongdoing (particularly where it is alleged to be deliberate), and the identity of the alleged wrongdoer. Therefore, whilst employers and employees may consider the scope of the public interest test to be somewhat limited by this ruling, the Court of appeal has not given whistleblowers a blank cheque.

 

 

Whistleblowing: Court of Appeal rules on “public interest” test

Cartel crackdown – £100,000 reward for whistleblowers

The new “Cracking Down on Cartels” campaign is targeting businesses which agree to not compete with each other in order to keep prices high, thereby cheating their customers. The purpose of this is to ensure there is healthy competition between businesses and that customers are treated fairly when it comes to pricing.

The Competition and Markets Authority (CMA), which is running this campaign, hope that the reward of up to £100,000 and the promise of anonymity will encourage whistleblowers to step forward and report any illegal activity that they have witnessed.

Research undertaken by the CMA  shows that less than a quarter of businesses feel that they know competition law well. Given that businesses who are found to be guilty of being part of such cartels can be fined up to 10 per cent of their annual turnover and the individuals involved can face up to five years’ imprisonment as well as a 10-year disqualification from director roles, it is important that businesses get to grips with competition law to avoid such penalties.

Whether the rewards offered will in fact encourage whistleblowers to come forward remains to be seen. However given that s18 of the Enterprise and Regulatory Reform Act 2013 removed the good faith requirement from the definition of a qualifying disclosure, it will be interesting to see whether this, coupled with the reward, will lead to an increase in dubious whistleblowing reports.

Cartel crackdown – £100,000 reward for whistleblowers

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Agency workers may have whistleblowing protection against end-users

The EAT has held that an agency worker was entitled to whistleblowing protection against an end-user as she was a “worker” under the extended definition in section 43K of the Employment Rights Act 1996.

The extended definition of “worker” applies only to the whistleblowing provisions of the ERA 1996. It was included to protect agency workers and was specifically intended to provide whistleblowing protection for health workers in England, Scotland and Wales, where the NHS has contractual arrangements in place that mean such workers do not fall within the standard definition of “worker” under section 230(3) of the ERA 1996.

Section 43K(2) of the ERA 1996 provides that in respect of an agency worker, the “employer” includes “the person who substantially determines or determined the terms on which he is or was engaged…”

Ms McTigue was employed by an agency, TMS Ltd (TMS), and was assigned to work as a nurse for the University Hospital Bristol NHS Foundation Trust (the Trust) in a sexual assault referral centre. She had a written employment contract with TMS on their standard terms. She was also subject to the Trust’s standard contract which required her to cooperate with the Trust in relation to health and safety, clinical governance and working time and also identified the supervisor under whom she would work.

Ms McTigue was removed from the assignment in December 2013 and brought whistleblowing claims against TMS and the Trust in relation to the protected disclosures she had allegedly made to the Trust and the detriment she claimed to have suffered as a result.

The Employment Tribunal ruled that it did not have jurisdiction to hear Ms McTigue’s claim as she was not a “worker” under the standard definition or the extended definition that applies to whistleblowing. Ms McTigue appealed to the EAT.

The EAT allowed the appeal. The Employment Tribunal had erred in concluding that the Trust could not have substantially determined the terms on which Ms McTigue worked for TMS, because TMS had done so. The EAT held that the definition allowed for both the end-user and the agency, or either of them, to have substantially determined the individual’s employment terms. Thus, the Employment Tribunal should have considered whether TMS and the Trust both substantially determined the terms on which Ms McTigue worked at the referral centre. The case was remitted to a fresh Employment Tribunal.

This EAT decision confirms that, depending on the extent to which the agency and end-user have both determined the terms under which the individual is engaged to work for the end-user, an agency worker may bring a whistleblowing claim against the agency, the end-user or both.

Agency workers may have whistleblowing protection against end-users

Insight: UK Employment Law Round-up – May 2016

During our Annual Update seminar on 27 April 2016, we discussed some of the legislative changes that employers should look out for over the next 12 months. One of these was the Trade Union Bill having now received Royal Assent.

UK Employment Newsletter 3DCoverIn this issue we also look at the EU’s Trade Secrets Directive and how this could impact on whistleblowers in the UK, as well as the Government’s call for evidence on the use of non-compete clauses.

We will also analyse cases which look at whether employees have a right to privacy in the workplace regarding email communications, whether terms contained in an employee handbook can be incorporated within an employee’s contract of employment and how tribunals should approach the remedy of re-engagement.

Read the full newsletter here.

Insight: UK Employment Law Round-up – May 2016

Insight: UK Employment Law Round-up – April 2016

29280_Employment-Round-Up_THUMBNAIL In this issue, we consider the requirements of recent legislative changes including the new whistleblowing regime for financial institutions and the updated employment rates/limits for 2016/2017. Hot on the heels of International Women’s Day, we also explain how the spotlight on diversity continues with the release of EHRC guidance on improving diversity at senior levels of business. Another complicated area for clients can be dealing with issues surrounding PHI schemes and we analyse a recent decision in this field.

Read the full newsletter here.

Insight: UK Employment Law Round-up – April 2016

Insight: UK Employment Law Round-up – January 2016

UK Employment Newsletter 3DCover In this edition we will be taking a look at the issues that are likely to be affecting employers in 2016, starting with a round-up of the cases to watch out for which will affect redundancy consultation processes, the extent of whistleblower protections and what might be expected of data controllers when complying with subject access requests. There are, of course, many other cases coming before the appellate courts this year which will shape the ever-changing employment law landscape in 2016.

Read the full newsletter here.

Insight: UK Employment Law Round-up – January 2016

Insight: UK financial institutions: Whistling while they work?

Financial service companies in the UK may soon face the prospect of remodelling their whistleblowing procedures and nominating whistleblowing champions.

The Public Interest Disclosure Act 1998 (PIDA) currently protects employees from suffering a detriment, or being dismissed, as a result of blowing the whistle in certain circumstances. Employees may receive compensation if they bring a successful claim in the Employment Tribunal in respect of such treatment. However, there is not currently any legal or regulatory duty on employers to have whistleblowing arrangements in place. The Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA)— the bodies charged with financial regulation in the UK—have published a joint consultation paper about formalising whistleblowing procedures in UK banks, building societies, credit unions with over £25 million of assets, PRA investment firms and insurers. This is anticipated to be approximately 1,500 firms in total.

Read the full article here.

Insight: UK financial institutions: Whistling while they work?